X v Bovey

[2014] NZHC 1619

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PLAINTIFF.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2014-454-10 [2014] NZHC 1619

IN THE MATTER

of an applicaton for Judicial Review

BETWEEN

X Plaintiff

AND

DAVID BOVEY First Defendant

THE BOARD OF TRUSTEES OF PALMERSTON NORTH BOYS' HIGH SCHOOL

Second Defendant

Hearing:	On the papers
Counsel:	C P Brosnahan for Plaintiff P J Reardon for Defendants
Judgment:	10 July 2014

COSTS JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.30 pm on the 10th day of July 2014.

Solicitors            Roger Crowley, Wanganui for Plaintiff

Lawler & Co, Auckland for Defendants

X v BOVEY [2014] NZHC 1619 [10 July 2014]

[1]      In  my  judgment  delivered  on  22  May  2014  dismissing  the  plaintiff’s application for judicial review, I reserved costs and invited memoranda.  I indicated that those memoranda must address any reasons why it would not be appropriate to apply the  usual  principle  that  costs  follow  the event.    Counsel  have now  filed memoranda.

[2]      Counsel for the defendants submits that costs should follow the event and that they should be awarded on a 2B basis.  Counsel for the plaintiff submits that an award of costs against the plaintiff would not be appropriate.  He submits that the plaintiff is a minor who has sued through his mother acting as his litigation guardian. He submits that the mother, who must necessarily pay if any award of costs is made, was suing without hope of personal gain and that this has been held to be a sufficient reason for not awarding costs against a litigation guardian.  Mr Brosnahan refers by

way of example to my judgment in Pickard v Ambrose.1

[3]      There is no general principle that a litigation guardian should be spared the costs consequences which would follow if the plaintiff did not require a litigation guardian.   On the contrary, r 4.41 of the High Court Rules directs that the fact of representation by a litigation guardian must be disregarded in making an award of costs.  That was noted in Pickard v Ambrose.   The reason why an award was not made against the litigation guardian in that case was that the defendants had an award of costs against another plaintiff, and the pursuit of the claim by the incapacitated plaintiff had not contributed to increasing the costs incurred by the

defendants.2   That was a special case, and is distinguishable from this case.  The fact

that the plaintiff has a litigation guardian is not a factor which can be taken into account in determining costs.

[4]      Mr Brosnahan further submits that there were good grounds for the plaintiff to be concerned about the defendants’ treatment of her son.  I do not regard that to be a consideration which justifies a departure from the ordinary principle that costs

follow the event.

1      Pickard v Ambrose HC Wellington CIV-2003-091-143, 6 October 2011.

2 At [39].

[5]      Mr Brosnahan also refers to my remarks that, on the delegation of powers to the Disciplinary Committee, “[n]ot all I’s were dotted and T’s crossed as well as they should have been”.3    Ultimately, however, the judgment upheld the defendants on this point.  My remarks do not provide a principled basis for a departure from the ordinary principle.

[6]      Mr Brosnahan makes the valid point that the litigation guardian is naturally and properly concerned for the welfare of her child, and that she is a person of modest means.  On the other hand, Mr Reardon makes the equally valid point that the defendant is a public body.   It is dependent on funding which is inevitably constrained.  However, while both points are valid, they are of limited relevance to the present  question.   The evaluation  of  considerations  such  as  this  on  a costs application would undermine the general principles that costs follow the event, and that the determination should be predicable and expeditious. There is nothing in the personal circumstances of either party which justifies a departure from the usual principle that costs follow the event.

[7]      It  therefore  follows  that  costs  should  be  awarded  on  a  2B  basis.    The defendants have submitted a schedule.4

[8]      There is an error in the calculation of the number of days allowed, as counsel for the plaintiff points out.  The correct addition of the allowances claimed by the defendants is 14.65 days. At the category 2 daily rate of $1,990, that is $29,153.50.

[9]     Counsel for the defendants indicated that it would accept $25,000 plus disbursements of $220 for filing fees.   I consider that a reduction to that extent would be a reasonable outcome.   I order costs of $25,000 plus disbursements as claimed.

“A D MacKenzie J”

3      X v Bovey [2014] NZHC 1103 at [47].

4      The schedule was attached to a draft judgment which the defendants sought to seal, although costs had not then been awarded.